Foreman v Adams

[2005] WASCA 27

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE FULL COURT (WA)

CITATION:   FOREMAN & ANOR -v- ADAMS [2005] WASCA 27

CORAM:   TEMPLEMAN J

MCKECHNIE J
MCLURE J

HEARD:   16 NOVEMBER 2004

DELIVERED          :   25 FEBRUARY 2005

FILE NO/S:   FUL 28 of 2004

BETWEEN:   ROSS COLIN FOREMAN

First Appellant

KELLY JOANNE BASSETT
Second Appellant

AND

MARGARET HELEN ADAMS
Respondent

ON APPEAL FROM:

Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA

Coram  :MACKNAY DCJ

Citation  :ADAMS -v- FOREMAN & ANOR [2004] WADC 16

File No  :KAL CIV 4 of 2002

Catchwords:

Personal injuries - Dog Act 1976 - Damages - Contributory  negligence - Whether findings open - Whether general damages manifestly excessive - Whether error to make a global assessment of loss of earning capacity - Turns on own facts

Legislation:

Dog Act 1976 (WA), s 46

Result:

Appeal allowed

Category:    B

Representation:

Counsel:

First Appellant               :     Ms L M Ellery

Second Appellant          :     Ms L M Ellery

Respondent:     Mr G E Nairn

Solicitors:

First Appellant               :     McKenzie Lalor

Second Appellant          :     McKenzie Lalor

Respondent:     Macdonald Rudder

Case(s) referred to in judgment(s):

Allanson v Toncich [2002] WASCA 216

Baum v Greenhalgh [2003] WASCA 62

Clark v Kramer [1986] WAR 54

Husher v Husher (1999) 197 CLR 138

Pene v Murphy [2004] WASCA 103

Placer (Granny Smith) Pty Ltd v Thiess Contractors Pty Ltd [2003] HCA 10

Planet Fisheries Pty Ltd v La Rosa (1968) 119 CLR 118

Randall v Dul (1994) 13 WAR 205

Sharman v Evans (1977) 138 CLR 563

Case(s) also cited:

Ardlethan Options Ltd v Easdown (1915) 20 CLR 285

Elford v FAI General Insurance Co Ltd [1994] 1 Qd R 258

Gamser v Nominal Defendant (1977) 136 CLR 145

Giorginis v Kastrati (1988) 49 SASR 371

Jones v Livox Quarries Ltd [1952] 2 QB 608

Hamlyn v Hann & Heagney [1967] SASR 387

Michael Kellaway International Pty Ltd v Shark Bay Airport Pty Ltd, unreported; FUL SCt of WA; Library No 980302; 25 March 1998

Miller v Jennings (1954) 92 CLR 190

Nunn v Hardcastle [2001] WASCA 428

O'Keefe v Graham [2001] WASCA 80

Plenty v Argus [1975] WAR 155

Stewart v Goldrange Pty Ltd [2003] WASCA 131

Wilson v Peisley (1975) 7 ALR 571

1. TEMPLEMAN J:  I have had the advantage of reading in draft the reasons to be published by McLure J.

2. I agree with her Honour's reasons and with the orders proposed.

3. There is nothing I wish to add.

4. MCKECHNIE J:  For the reasons she gives, I agree with the orders proposed by McLure J.

5. MCLURE J:  The respondent carries on business as a debt collector and process server.  In the course of attempting to serve a writ on the evening of 15 July 2001 the respondent attended at premises in Boulder which were occupied by the appellants ("premises").  Whilst approaching the front of the house on the premises, the respondent was bitten by a dog.

6. The respondent sued the appellants for damages for personal injuries. The claim is made under s 46 of the Dog Act 1976 (WA) which makes the owner, or a person deemed to be the owner, of a dog liable in damages for any injury inflicted in the course of an attack by that dog. It is not necessary to prove negligence on the part of the owner (s 46(3)), but an award of damages is subject to any contributory negligence.

7. After trial, the learned trial Judge, Macknay DCJ, found that the appellants were liable in damages for the respondent's injury and that the respondent had not been contributorily negligent.  He assessed damages in the sum of $46,341.97.

8. The appellants' appeal against the rejection of their contributory negligence defence and the quantum of damages.  On quantum, the appellants abandoned grounds of appeal relating to the award of damages for psychiatric and psychological sequelae on the basis of the respondent's concession that the award of damages did not reflect any (or any significant) component for such loss.  The parties approached the appeal on the basis that the award had to be justified on the basis of the respondent's physical injuries.  The challenge to quantum relates to the award for non‑economic loss, past and future loss of economic capacity, past medical expenses and future pharmaceutical needs.

9. Finally, ground of appeal 2(l) challenges the trial Judge's order that each defendant pay the judgment sum instead of an order that the defendants pay that sum.  The respondent concedes this ground of appeal.

Contributory Negligence

1. The respondent visited the premises at about 6.35 pm on 15 July 2001.  It was dark.  Her visit was unannounced.  The front of the premises was fenced, although there was no gate for a gap in the front fence.  After walking into the front yard, the respondent saw a small female child (who was then aged two and a half years) playing with a dog under an electric light in front of the house.  The respondent did not see a sign warning visitors to "beware of dogs".  The respondent spoke to the child and continued to walk towards her when she was bitten by the dog on the lower part of the back of her leg.  In cross‑examination, the respondent agreed that she continued walking towards the dog after it had commenced to bark but it had stopped barking and disappeared (I infer) before she was bitten.

2. The appellants contend the trial Judge erred in finding that the respondent was not guilty of contributory negligence in circumstances where, notwithstanding that the dog barked at her, she continued to walk towards the house.

3. In rejecting the contributory negligence defence, the trial Judge said that it is reasonable to assume that if a dog is likely to attack a person who comes near, then either the part of the premises where the dog is kept will be gated to prevent unauthorised entry or the dog itself will be secured.  In this case, the premises were not secured, the dog was not tethered and the dog was in the company of a small child.  Further, there was no evidence that the nature or circumstances of the barking was, in context, such as to give rise to a reasonable apprehension that it may attack or to cause a reasonable person to retreat from the premises.  In my view, it was clearly open on the evidence for the trial Judge to reject the contributory negligence defence and I am not persuaded the evidence supports or compels a contrary conclusion.  I would dismiss this ground of appeal.

Challenge to Quantum

1. The relevant legal principles are not in dispute.  It is not enough that an appellant may be able to point to some mathematical or other error affecting the calculation of one or more of the elements of the award of damages.  The appellant must go further and demonstrate that, by virtue of those errors, the resulting award made is wrong, in the sense of it being outside the range of a sound discretionary assessment:  Baum v Greenhalgh [2003] WASCA 62 at [92] per Parker J; Pene v Murphy [2004] WASCA 103 at [38] per E M Heenan J.

2. The findings made by the trial Judge are not challenged in the grounds of appeal.  They are relevantly that the respondent sustained a nasty, but not serious, injury as a result of a single, short attack by the dog.  Healing of the resultant wound was complicated by the onset of an infection, but resolution occurred within a period of a little more than three months after the attack.  The respondent was left with a cosmetic injury which she described as unsightly, although it was very low down on the right leg and susceptible to treatment to some degree.  The respondent was compensated for the proposed treatment.  The respondent also has a sural neuropathy and some soft tissue damage to the right lower leg.  Following the attack and on her wound becoming infected, the respondent was restricted in her movement and thereafter had some ongoing physical weakness in her right lower leg with the possibility of further degeneration.

3. The respondent was 55 years old at the time of the trial in October 2003.  She had significant pre‑attack health difficulties including rheumatoid arthritis, which had obliged her to cease her previous occupation as a dump truck driver and prevented her doing some housework, was prone to depression and had high blood pressure.

Loss of Amenities and Pain and Suffering

1. The trial Judge allowed $25,000 for non‑pecuniary loss which included an allowance for the respondent's cosmetic injury.

2. The appellants contend that the award of general damages is manifestly excessive; that is, the allowance itself by its disproportion to the injuries received, demonstrates error (see Sharman v Evans (1977) 138 CLR 563 at 565). In support of that submission, the appellants relied on the decision of this Court in Allanson v Toncich [2002] WASCA 216. In that case the appellant was a self‑employed commission agent who suffered personal injuries as a result of being bitten on his right hand by a dog. The trial Judge awarded the appellant damages of $1,954.23 of which $750 was for general damages. The trial Judge described the injury as relatively insignificant although the wound subsequently became infected and had to be cut and drained. Although the appellant had a full physical recovery, he continued to suffer psychological symptoms stemming from an accident caused fear of dogs. On appeal the Court increased the award of general damages to $5,000 having arrived at the nature of the continuing psychological injury and the total award of damages to $8,620.

3. The appellants' reliance on specific authority is misconceived.  The High Court has determined that in deciding whether or not an award of general damages is excessive the Court should not seek out and measure it against a norm or standard from the decided cases: Planet Fisheries Pty Ltd v La Rosa (1968) 119 CLR 118 at 124. However, the Court seeks to ensure the award is proportionate to the particular injuries received and disability they cause in respect of a particular plaintiff in light of current ideas of fairness and moderation which emerge from the decided cases generally: Planet Fisheries (supra) at 125; Clark v Kramer [1986] WAR 54 at 60.

4. It is necessary to apply those principles to the facts.  In this case the injury was not serious.  The infection complication resolved around three months after the attack.  The cosmetic injury was not in a prominent position and was susceptible to treatment to some degree.  However, as a result of nerve and soft tissue damage, there was a continuing physical weakness in her right lower leg.  In the context of those facts and in the light of current ideas of fairness and moderation which emerge from the cases generally I am satisfied the award for $25,000 for general damages is so far outside the permissible range as to be manifestly excessive.  It is open to this Court to make its own assessment.  I would reduce the award for general damages to $12,000.

Past economic loss

1. At all material times from November 1997 the respondent carried on business on her own account as a debt collector and process server.  She had employees who were remunerated on the basis of hours worked.  The amount of work undertaken by the employees before and after the injury varied from week to week.  The evidence established that prior to (and after) the attack the respondent engaged in income‑producing field work.

2. The stated basis for her claim (as appears from a substituted schedule) is that, as a result of the attack, the respondent had reduced capacity to work as a process server and debt collector, resulting in an increase in the number of hours worked by her staff, thereby reducing the income she would have otherwise received from the business.  Annexed to the schedules were documents comparing the number of hours worked by the respondent's employees in the twelve months prior to the attack to the number of hours worked in the period from the attack to June 2003.  The documents are said to establish that the employees did an average of 3.77 hours of additional work per week.  On this basis the respondent claimed the amount of $7,275.83, being the gross cost of wages and superannuation for the period to October 2003.

3. The trial Judge made some adverse observations concerning the respondent's evidence relating to her economic loss claim.  He concluded that assertions by the respondent as to the differences and extent between her past and present abilities to work long hours in the business found little support in the wage or financial records, and were contradicted by her claim for past and future loss of economic capacity put forward on her behalf by her solicitors.  Further, he noted that those claims in turn were not supported to any real extent by the wage or financial records.  He concluded by saying he was not persuaded that the respondent had any difficulty carrying out office work.  I infer this means work in the office, not that she had the skills to do all necessary administrative tasks.  It is clear the trial Judge accepted that the respondent's capacity for field work was impaired.

4. The respondent's tax returns and financial statements for the business to the 2003 financial year were in evidence.  The financial statements show that in the 2001 financial year the gross income of the business was $95,702 and wages were $19,317 and in 2003 the gross income was $134,349 and wages were $23,338.  The respondent did not explain the figures. 

5. The trial Judge noted from the financial statements that an increase in income of about 40 per cent was accompanied by an increase in wages of about 20 per cent.  He said that did not appear unusual.  He continued:

   "I would not find that the claim has been made out on the basis stated.

   It is, however, the case that following the attack, and on her wound becoming infected, the plaintiff was restricted in her movement, and has since had some ongoing problems in the right lower leg, apart from any nervousness about dogs.

   Those things do demonstrate some loss of economic capacity to date, and have, it is reasonable to infer, resulted in some loss of income, which for the reasons given can only be broadly assessed.

   I allow $4,000."

6. The appellant challenges the correctness of using a global assessment when it is said the taxation and financial documents reveal that no economic loss occurred and further contends that the findings made by the trial Judge did not support an award of $4,000.

7. The legal principles are not in dispute.  The respondent bore the burden of proving not only that she had suffered damage as a result of the attack but also the amount of the loss she had sustained.  She had to prove these matters on the balance of probabilities and with as much precision as the subject matter reasonably permitted: Placer (Granny Smith) Pty Ltd v Thiess Contractors Pty Ltd [2003] HCA 10 at [37]. The High Court said in that case (at par 38):

   "It may be that, in at least some cases, it is necessary or desirable to distinguish between a case where a plaintiff cannot adduce precise evidence of what has been lost and a case where, although apparently able to do so, the plaintiff has not adduced such evidence.  In the former kind of case it may be that estimation, if not guesswork, may be necessary in assessing the damages to be allowed.  References to mere difficulty in estimating damages not relieving a court from the responsibility of estimating them as best it can may find their most apt application in cases of the former rather than the latter kind."

8. Damages for both past and future economic loss are allowed to an injured plaintiff because the diminution of her earning capacity is or may be productive of financial loss.  It is necessary to identify both what capacity has been lost and what economic consequence will probably flow from that loss in order to assess a sum that will put the plaintiff in the position she would have been if the injury had not been sustained: Husher v Husher (1999) 197 CLR 138 at 143.

9. Where a plaintiff is self‑employed at the time of the injury, any loss of profits resulting from the withdrawal (in whole or in part) of his or her labour from the business forms the basis of the assessment of damages for lost earning capacity.  In appropriate circumstances, loss of profits may correspond with the net increase in costs attributable to the withdrawal of labour:  Randall v Dul (1994) 13 WAR 205 at 212 – 214.

10. The appellants' first contention that it was not open to make a global assessment of past economic loss is based on the assertion that the taxation and financial documents reveal that no actual economic loss was incurred.  No such finding is made by the trial Judge.  The documents themselves do not compel such a finding.

11. The trial Judge did not accept the respondent's quantification of the increase in expenses because he was not satisfied on the balance of probabilities that the amount claimed was attributable to the respondent's accident caused disability as distinct from an increase in the volume of work.  On the other hand, the documents and other evidence does not compel the contrary conclusion, namely that the increase in wage expenses was solely attributable to the increase in gross income.  In light of the trial Judge's findings that the respondent was restricted in her movement in the period until the resolution of the infection complication, that she had continuing weakness in her right lower leg attributable to the sural nerve and soft tissue damage with the risk of further degeneration and that her disability impaired her capacity for field work, it was open and reasonable to infer that she suffered loss as a result of the injury.  That loss is likely to result in increased labour costs in a small business in which the employees are paid for time spent on business‑related activities, particularly having regard to the respondent's evidence that, but for the injury, she had the time and capacity to handle additional work.  This is not a case in which it can be said the respondent could have, but failed to, produce precise evidence of what has been lost.  The trial Judge accepted she had suffered loss of the relevant type but not the quantification of that loss.  In such circumstances the trial Judge is entitled to make a broad assessment of the damage.  The appellants have not demonstrated that the trial Judge committed any error of law or fact in his approach to the assessment of past economic loss and the allowance is within the range of a sound discretionary assessment.  I would dismiss this ground.

Future economic loss

1. The respondent's claim under this head was on the same basis as that for the loss of past economic capacity.  Consistent with his approach to past economic incapacity, the trial Judge did not accept the respondent's quantification of her claim but made a global assessment.  He referred to her age, her significant pre‑attack health difficulties, his earlier finding that the respondent was capable of full time office work given her demonstrated ability to manage the debt collection business, her continuing physical disability and possibility of further degeneration.  He allowed $10,000 which included an allowance for any lost income following cosmetic surgery.  For the reasons given in relation to the challenge to past economic loss the approach taken by the trial Judge was open and appropriate in the circumstances.  No error has been shown.

Past medical expenses

1. The appellants challenge the amount awarded by the trial Judge for pharmaceuticals of a type which the respondent was also taking before the attack, being Staphylex (an antibiotic) and Zoloft (an anti‑depressant).  I infer that the use of the antibiotic after the attack was for treatment of the infection of the attack‑caused wound.  There is no merit in this aspect of the claim.  Although there is merit in the claim insofar as applies to the antidepressant Zoloft, the consequence of the error is of such a minor nature as not to impugn the total award.  I would dismiss this ground.

Future pharmaceutical needs

1. After acknowledging that there was little evidence as to the respondent's future pharmaceutical needs related to the attack the trial Judge said "Doing the best I can I allow $1,000".  The respondent established a need for future medication.  Her evidence was that she had to apply cream to the scar to soften it prior to any cosmetic surgery for which allowance was made.  The respondent had a continuing physical weakness with the possibility of further degeneration.  It was open to the trial Judge to make a global award of that order.  I would dismiss this ground.

Conclusion

1. For the reasons I have given I would allow the appeal and set aside the judgment.  In lieu of judgment for the sum of $46,341.97 I would reduce the award of general damages to $12,000 thereby reducing the award to $33,341.97.  The order should be that the defendants pay that sum to the plaintiff.  I would hear from the parties on costs.